Andrew Coker-Williams v Robert Breen T/A R.J & S.J Breen Pty Ltd

[2012] FWA 4374

[2012] FWA 4374

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Coker-Williams
v
Robert Breen T/A R.J & S.J Breen Pty Ltd
(U2012/5161)

COMMISSIONER RYAN MELBOURNE, 23 MAY 2012

Termination of employment - application filed out of time.

[1] This is an edited version of my reasons given in transcript on 18 May 2012 granting an extension of time for the filing of this application.

[2] An application has been made for an unfair dismissal remedy by Andrew Coker-Williams in relation to his termination by Robert Breen trading as R.J. & S.J. Breen Pty Ltd. The application is apparently out of time. The Applicant has sought an extension of time.

[3] The time limits for making an application for an unfair dismissal remedy are set out in section 394 of the Fair Work Act. Subsection (2) reads:

“The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under

subsection (3).”

[4] Subsection (3) of section 394 reads as follows:

“FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[5] The Applicant in this matter has filed written submissions in support of the application for an extension of time and the Applicant has also given evidence in the matter. The evidence in this matter is that the Applicant was ignorant of his right to make an application until it was suggested to him by Centrelink on 26 January 2012, and this was eight days after the termination. Evidence is that Centrelink made an appointment for the Applicant to attend and employment service, and the Applicant believed that this was for the purpose of dealing with his unfair dismissal application.

[6] The evidence also was that the employment service was never meant to help with an unfair dismissal claim and referred the Applicant to Fair Work Australia. The Applicant contacted Fair Work Australia on 14 February and filed his application on 21 February. Under cross examination the Applicant conceded that Fair Work Australia told him that an application could be made by telephone or online, but that FWA did not inform him of the 14 day time limit. The Applicant's evidence is that he does not have, nor does he know how to use, a computer for the purpose of making an online application.

[7] The Applicant filled out the application form sent to him by Fair Work Australia on the day he received it and sent it back to Fair Work Australia. Mere ignorance of the right to make an application is not of itself sufficient reason to warrant an extension of time. Mr Lester drew my attention to decisions on this matter and I accept the correctness of those decisions. But in this matter there are other relevant matters to take into account.

[8] The Applicant was not given a separation certificate at the time of dismissal because when he asked for it he was told that Mr Breen was still at sea and Mrs Breen needed to wait. Also it is relevant to note that the Applicant was terminated on Flinders Island and had to make his own way back to Tasmania before he could take further actions in relation to his termination. If these delays alone, which were caused by the employer, did not occur then the Applicant may have contacted Centrelink earlier than 26 January, in which case the level of delay would have been reduced.

[9] I need to consider this matter in the context of all of the factors required to be considered under section 394(3). I have dealt reasonably clearly with the reasons for the delay as advanced by the Applicant. Section 394(3)(b) requires that I take into account whether the person first became aware of the dismissal after it had taken effect. It is certainly clear from the evidence in this matter, and Mr Lester made the submission strongly on this to base this, that Mr Coker-Williams as the Applicant in this matter was advised of the termination by 18 January. I have no doubt that that is the case. It is consistent with the evidence of the Applicant in any event.

[10] I am also required to take into account under 394(3)(c) any action taken by the person to dispute the dismissal. Whilst Mr Lester, on behalf of the Respondent, asserted in his submissions that no action had been taken, I take a different view. Action clearly was taken as from the time the Applicant was advised by Centrelink of a possible right to an unfair dismissal remedy. Once the Applicant was aware of that right - and this was certainly within the 14 day time limit - the Applicant acted in a manner which I consider consistent with him taking action to pursue that right.

[11] It may have been miscommunication or misinformation that the Applicant believed that the employment service to which he was referred by Centrelink was to help him with his unfair dismissal remedy application. Be that as it may, it is clear that the Applicant intended, and acted consistently with intent, to make an application for an unfair dismissal remedy from the time he was advised by Centrelink on 26 January 2012. This is clearly evident by the actions taken by the Applicant once he attended the interview, or appointment, with the employment service and was advised by them that they had nothing to do with assisting him in making an unfair dismissal claim, and referred him to Fair Work Australia.

[12] Whilst Mr Lester has sought to draw attention to the fact that the Applicant neither made an online application nor a telephone application as he was advised were possible by Fair Work Australia, it is also clear that Fair Work Australia did assist the Applicant by making an application available for him to lodge. The difficulty in the submissions of Mr Lester is that if the directions from Fair Work Australia had been that the Applicant must file online or by telephone, then it may have had an impact upon the way in which I approach the evidence in this matter. However the evidence of the Applicant is that he has since becoming aware of his right to make an application sought to exercise that right and has taken actions to do so.

[13] I am also required to consider under section (d) of section 394(3) any prejudice to the employer in this matter. I accept the submissions of Mr Lester that this matter is neutral in the present matter. It neither favours nor works against an application for an extension of time. I am also required under s.394(3)(e) to consider the merits of the application. It is generally the case in unfair dismissal matters that the Tribunal will not consider the details of the merits of an application. I draw attention to a decision of the Full Bench of the Australian Industrial Relations Commission on 10 November 2000 in the matter of Kyvelos v Champion Socks Pty Ltd where the Full Bench said:

”It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application for an extension of time for the lodgement of an application. In particular it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 1

[14] Whilst I agree with the sentiments in that Full Bench decision it is very clear that in this particular matter the evidence was presented by the Applicant, having filed a witness statement and then with the Applicant adopting his witness statement in the witness box as his evidence. On that basis the Tribunal actually had before it evidence which relates to the merits of the case. The Respondent, Mr Breen, gave evidence in this matter but limited his evidence to a particular issue raised in the material and the evidence of the Applicant.

[15] In the present matter I am satisfied that I have sufficient direct evidence in this matter that I can consider the merits of the application when considering the application for an extension of time. It appears to me from the evidence as presented, and bearing in mind that my role is not to conduct a case on the merits nor to make decisions on the merits, that if I accept the witness evidence so far of the Applicant, the application has significant merit. Even if the Respondent can introduce the issues of unsatisfactory performance - and it is certainly entitled to if it is information that it has become aware of after the termination but which is relevant to the termination.

[16] Even if that is the case, the Respondent has conceded in the form F3 that a reason for the dismissal was related to conduct on the night in question, and the night in question was the same night that is described in the evidence of the Applicant. Given that it appears that the purpose or the nature of the termination related to specific conduct in a private house after work hours on a particular night, there appears prima facie to be significant merit in the application and that merit needs to be had regard to in determining an application for an extension of time. I note the decision of the Federal Court of Australia in Haining v Deputy President Drake and Ors that the majority of the Full Court said:

“If a case seems highly meritorious that might legitimately persuade the decision maker to accept the adequacy of an explanation that would not pass muster in a case of little apparent merit.”  2

In the same decision Moore J said

“Circumstances can arise where no explanation or no adequate explanation is given for the delay in instituting proceedings but it is nonetheless in the interests of justice to extend time.”

[17] I have had regard to that decision because in this matter, whilst I agree that ignorance of the law is no excuse when it is the sole reason for an application for an extension of time, not only are there additional factors which would, in my view, constitutive exceptional circumstances relating to the reasons for the delay but more importantly, having regard to the evidence in this matter that relates to the issues of merit, it is in my view a case where there is a highly meritorious case which can be mounted by the Applicant in this matter, and on that basis and having regard to all of the factors in section 394(3) I am prepared to grant an extension of time, and the extension of time is granted to 21 February 2012. On that basis the application is within time.

[18] The matter will now be referred back to the unfair dismissals unit for allocation to a member for dealing with the issue of merit, or possibly by way of conferencing first.

COMMISSIONER

Appearances:

A. Coker-Williams on his own behalf

F. Lester, for the Respondent

Hearing details:

2012
Melbourne
18 May
Launceston
18 May

 1   Print T2421, para 14

 2 (1998) FCA 1168

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